Mason v Clarke

JurisdictionEngland & Wales
JudgeViscount Simonds,Lord Oaksey,Lord Morton of Henryton,Lord Reid,Lord Keith of Avonholm
Judgment Date24 March 1955
Judgment citation (vLex)[1955] UKHL J0324-1
Date24 March 1955
CourtHouse of Lords

[1955] UKHL J0324-1

House of Lords

Viscount Simonds

Lord Oaksey

Lord Morton of Henryton

Lord Reid

Lord Keith of Avonholm

Mason and Others

Upon Report from the Appellate Committee, to whom was referred the Cause Mason and others against Clarke, that the Committee had heard Counsel, as well on Monday the 21st, as on Tuesday the 22d, Wednesday the 23d, Thursday the 24th and Monday the 28th, days of February last, upon the Petition and Appeal of Eric Mason, of Lawford Lane, Bilton, near Rugby, in the County of Warwick and Shepton Mallet Transport Limited, whose registered office is at 110 Cannon Street, in the City of London, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 8th of December 1953, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, and that the Petitioners might have the relief prayed for in the Appeal, or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the printed Case of John Maurice Clarke, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 8th day of December 1953, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Judgment of the Honourable Mr. Justice Croom-Johnson, of the 8th day of May 1953, thereby set aside, be, and the same is hereby, Restored except so far as regards the words "£50 (Fifty Pounds) with" which shall be omitted from the said Judgment on the claim for the Plaintiffs Shepton Mallet Transport Limited: And it is further Ordered, That an injunction be granted restraining the Defendant, either personally or by his servants, agents or licensees, from shooting or otherwise sporting in or upon the lands which the Defendant holds of the second Plaintiffs at or near Hothorpe, except in accordance with the Ground Game Act, 1880, or any other relevant statute: And it is further Ordered, That the Respondent do pay, or cause to be paid, to the said Appellants, the Costs incurred by them in the Court of Appeal, and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice to do therein as shall be just and consistent with this Judgment.

Viscount Simonds

My Lords,


The Appellant Company, Shepton Mallet Transport Ld., are the owners of an agricultural estate known as the Hothorpe Estate on the borders of the counties of Northampton and Leicester. The Respondent is the tenant farmer of a farm of about 341 acres which is part of that estate. He holds this farm as tenant from year to year under a number of agreements about which it is necessary to say no more than that each of them was an ordinary agricultural tenancy and contained a reservation to the owner (subject to the provisions of the Ground Game Act, 1880) of all the game, rabbits, wildfowl and fish with liberty to himself and all other persons authorised by him to preserve, shoot, hunt, course, kill and carry away the same and also contained an agreement by the tenant that he would not (subject to the provisions of the same Act) shoot or otherwise sport on the land. It is clear law that the so-called reservation operates as a regrant of the rights therein described in favour of the landlord and his assigns and that a profit à prendre is thereby created.


In the year 1949 the Respondent's farm and the spinneys adjoining it were infested with rabbits. In that year a vain attempt was made by a firm of estate agents, Messrs. Howkins & Sons, of Rugby, on behalf of the Appellant Company to let the shooting, and in or about July, 1950, the Appellant Company requested the Northamptonshire Agricultural Executive Committee to gas a spinney called Coombe Hill Spinney, and this was done. But the plague of rabbits was still serious and on the 2nd October, 1950, the Committee notified the Respondent that they intended to make a further survey of the farm. On the 9th October the Committee authorised their Pests Officer, a Mr. Smart, to serve notices upon both the Respondent and a Mr. Bennett, the Managing Director of the Appellant Company. On the 10th October Smart saw the Respondent, told him of the authorisation and said that, if the Respondent preferred the Committee to deal with the rabbits for him, an order upon him to destroy the rabbits would not be necessary. The Respondent thereupon signed in pencil an agreement with the Committee whereby the Committee agreed at a certain charge to carry out "rabbit destruction work" on the farm and the Respondent agreed to make all necessary arrangements free of charge to enable the Committee's servants to begin work as soon as possible. I do not now pause to examine the impact of this agreement upon the Ground Game Act.


At this stage the Appellant Mason comes on the scene. He is an experienced rabbit catcher who still practises that trade in addition to carrying on the business of a garage proprietor. He had shortly before the 11th October seen Mr. Bennett, whom I have already mentioned, about the shooting on the Hothorpe Estate and was referred by him to a Mr. Atkinson. a partner in the firm of Howkins & Sons. On the 11th October Mason went over the Hothorpe Estate, was shown its boundaries by the bailiff of the Appellant Company named Davies and estimated that he might catch 1,000 rabbits by the end of December and possibly another 500 to 600 rabbits by October, 1951. He accordingly saw Mr. Atkinson and after making an offer which was not accepted agreed with him to pay £100 for the rabbiting rights on the estate for a year. I use the expression rabbiting rights because, while it is not clear what expression was used, there is no doubt whatever that both parties meant Mason to have the right to kill rabbits by any lawful method and to take them away. Subject to the question with which I must presently deal, Mason thus became entitled in equity to a profit à prendre, viz., the right to enter upon the Respondent's land and kill rabbits there and the Respondent had no possible right to gainsay him.


I must now state the fact upon which so much of this litigation has turned. After making the oral agreement with Mr. Atkinson, Mason went again to the office of Howkins & Sons, handed to a girl in the office his cheque for £100 and received a receipt which had already been initialled by Atkinson. The receipt was in the following form:—


Auctioneers, Valuers, Surveyors and Land Agents.

12, Albert Street, Rugby.

11th October 1950.

No. 1383.

Received of E. Mason Esq.

The sum of………One hundred………pounds………shillings and……… pence.

Towards Bailiff's wages on Hothorpe Estate. £100 0.0.





11th Oct. 1950

Received with thanks.



This document is relied on by the Respondent as affording good ground for denying that Mason had at the relevant dates acquired the right to enter on the land and kill and take rabbits. But before I consider that question I will pursue the narrative of facts to the end.


On the same day, the 11th October, Howkins & Sons wrote to the Respondent informing him that the Appellant Company had given Mason permission to shoot the rabbits on the Hothorpe Estate. This, though not an accurate description of the agreement, was sufficient to notify the Respondent that Mason was authorised to enter on the land, and in fact on the following day he again visited the farm, saw the Respondent and his son there and told him that he had got the "rabbiting rights" for £100 for which he held a receipt. I do not think that the Respondent was under any illusion as to what "rabbiting rights" meant. According to the evidence, the Respondent appeared to be pleased at this information, but on the same day, returning to Smart a copy of the contract with the Committee which he had signed in ink, he wrote in these terms:

"As I predicted months ago that Bennett's intentions were to preserve these pests until he could make a big price of them, my guess has come true. Today I have seen and spoken to a man whom Bennett has sold the rabbits to for £100. This man holds a receipt for his payment. He has promised to bring it for my perusal when I shall make a copy of same and you will be able to have one also if you wish. For the Lord's sake beat him to it. He has beat you up to now".


It may be gathered from this letter that the Respondent did not intend friendly co-operation with Mason, though it is not clear why this should be so. And so it proved, for on the 15th October, Mason being in a field on the estate with three companions looking for rabbits in the hedge, the Respondent rode up on his horse, and in the words of Mason whom the learned Judge accepted as a witness of truth, "He behaved like a lunatic. He flew at me. He ordered me off altogether. Clarke wanted to fight. He was on us all". He left no doubt of his avowed intention that Mason should not get any rabbits on his land. I do not propose to occupy your Lordships' time by a detailed account of the Respondent's behaviour. It is clear that by such provocative conduct as I have described and by upsetting the snares set by Mason on his farm he did his utmost to prevent him exercising the rights for which he had paid. Nor was he content with that measure of interference; for it was established beyond all doubt by the evidence, that on more than one...

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    ...1 Queen's Bench, 460, in the Court of Appeal, per Lord Justice Denning at page 467), and in the House of Lords per Lord Simonds ( 1955 Appeal Cases, 778, at page 786). In these cases the contrary was not argued and the judicial statements are not of binding authority. But in Johnstone v. Ho......
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1 books & journal articles
    • Singapore
    • Singapore Academy of Law Journal No. 2009, December 2009
    • 1 December 2009
    ...ER 222; Mason v Clarke[1954] 1 QB 460 (this was a decision of the Court of Appeal; though subsequently overruled by the House of Lords in [1955] AC 778 on a finding of fact, the legal principles laid down were not challenged). 9 [1957] 1 QB 267. 10 [1957] 1 QB 267 at 287—288. 11 G H Treitel......

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